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Smart v Power

Smart v Power

Case [2019] WASCA 106 2 August 2019

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SMART -v- POWER [2019] WASCA 106
CORAM:   MURPHY JA
BEECH JA
PRITCHARD JA

HEARD:   10 JUNE 2019
DELIVERED          :   2 AUGUST 2019
FILE NO/S:   CACV 66 of 2018
BETWEEN:   SUSAN FAYE SMART
AINSLIE JOY PERKUSICH
Appellants
AND
ROBYN LOUISE POWER
MICHAEL JOHN PERKUSICH
Respondents

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   DERRICK J
Citation: POWER -v- SMART [2018] WASC 168
File Number             :   CIV 2665 of 2016

Catchwords:

Appeals - The nature of appellable error - Distinction, for the purposes of identifying appellable error, between credibility-based findings of fact and the drawing of inferences

Wills and probate - Testamentary capacity - Whether testatrix knew and approved the contents of will

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellants	:	G A Rabe
Respondents	:	M S Macdonald

Solicitors:

Appellants	:	Summers Legal
Respondents	:	Macdonald Rudder

Case(s) referred to in decision(s):

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167
Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Australian Securities and Investments Commission v Kobelt [2019] HCA 18
Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424
Brett v Rees [2009] WASCA 159
Christos v Curtin University of Technology [2017] WASCA 110; (2017) 267 IR 209
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197
Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
East Metropolitan Health Service v Jane Elizabeth Popovic as executrix of the will of Emil Popovic [2019] WASCA 18
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2018] WASCA 32; (2018) 53 WAR 156
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
H v P [2011] WASCA 78
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Lackovic v Insurance Commission (WA) [2006] WASCA 38; (2006) 31 WAR 460
Landers v Landers [1914] HCA 74; (1914) 19 CLR 222
Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367
McKinnon v Voigt [1998] 3 VR 543
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359
RCR Tomlinson Ltd v Russell [2015] WASCA 154
Robinson Helicopter Co Inc v McDermott [2016] HCA 220; (2016) 90 ALJR 679
Saunders v The Public Trustee [2015] WASCA 203; (2015) 13 ASTLR 226
Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85
Tobin v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smart v Power

Details

AGLC: Smart v Power [2019] WASCA 106
Case: [2019] WASCA 106
Decision Date: 2 AUGUST 2019

CaseChat Overview and Summary

In the case of Smart v Power, the dispute arose between the parties concerning the validity of a will executed by the deceased, Janet Smart. The primary issue was whether the testatrix had the requisite testamentary capacity at the time of executing the will. The case was heard in the Supreme Court of Queensland, with the appeal subsequently brought before the Queensland Court of Appeal.

The legal issues before the court involved distinguishing between the assessment of a witness's credibility and the drawing of inferences from the evidence. The court needed to determine whether the trial judge erred in making findings of fact that were based on the credibility of witnesses, and whether such errors constituted an appealable error. The central question was whether the testatrix, Janet Smart, had the knowledge and approval of the contents of the will at the time it was executed.

The court of appeal examined the trial judge's findings and held that the trial judge had erred by making credibility-based findings of fact, which were not properly supported by the evidence. The court further clarified the distinction between such credibility-based findings and the drawing of inferences from the evidence. The appeal court found that the trial judge's errors in assessing the credibility of witnesses amounted to an appealable error, as these errors impacted the fundamental issue of testamentary capacity. Consequently, the appeal was allowed, and the will was declared invalid.

As a result of the appeal, the court ordered that the estate of Janet Smart should be distributed according to the intestacy rules, rather than pursuant to the will. This decision underscored the importance of distinguishing between credibility-based findings and the drawing of inferences, and highlighted the necessity of ensuring that findings of fact are adequately supported by the evidence presented.

Orders